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Fact Finding on Domestic Violence in Private Law, Children Cases: Preventing Delay - A Suggestion

Anne-Marie Hutchinson OBE of Dawson Cornwell and Jacqueline Renton of 4 Paper Buildings consider problems arising from fact finding where domestic violence is alleged in private law children cases, and suggest measures to reduce delays.

Image of Anne-Marie Hutchinson OBE Partner Dawson Cornwell   Image of Jacqueline Renton Barrister 4 Paper Buildings

Anne Marie Hutchinson OBE, Dawson Cornwell, and Jacqueline Renton, 4 Paper Buildings

Domestic violence is one of the most troubling issues which family lawyers have to address. This article is concerned with fact finding in private law, children cases where allegations of domestic violence are raised by one parent against the other parent.

On 9th May 2008, a new Practice Direction came into force entitled: “Residence and Contact Orders: Domestic Violence and Harm”. (The Practice Direction was amended on 14th January 2009 but the amendments do not alter the way in which fact finding hearings should be listed.)

This Practice Direction put in place a new set of guidance for courts and practitioners when faced with allegations of domestic violence made by a parent or a child against another parent. With regard to the issue of fact finding hearings in private law proceedings, the Practice Direction makes clear that courts should determine:

“as soon as possible whether it is necessary to conduct a fact-finding hearing in relation to any disputed allegation of domestic violence before it can proceed to consider any final order(s) for residence or contact”.

Fact finding hearings can often be highly beneficial. The hearing allows for the court to draw a line under the allegations raised, whether or not some or all of the findings are found by the court, and subsequently focus the parties’ attention on the issue of welfare and the best interests of the subject of the proceedings – the child/ren.

However, from the authors’ experience – which may well be shared by many practitioners and many judges who undertake fact finding hearings – the current system has not successfully addressed the problem of delay. This is partly because the way in which fact finding hearing are approached by the courts and practitioners means there is often a great delay before applications for contact and residence are ultimately determined. It is the mantra of every child law practitioner that delay is inimical to a child’s best interest. In cases where domestic violence is alleged, delay translates as delay in a parent, and it remains the case that is usually a father, establishing or re-establishing meaningful contact with his child. The authors have experience of many cases where it has taken one year or more before a fact finding hearing has taken place.

Delay in the system can lead to immense frustration on an interim basis, not only because an individual will want an opportunity to clear their name, but also and more importantly, a parent will want to be able to have interim contact with their child pending the court’s final determination of their residence/contact application. In cases where the domestic violence alleged is very serious – such as threats to kill and assaults amounting to grievous bodily harm – courts will often take the view that there should be no contact until the conclusion of the fact finding hearing, thus severing the bond between parent and child. In other cases, generally where lower level domestic violence is alleged, the court will often permit interim contact but only on the basis that it is supervised, thus placing the parent and child in the artificial environment of a contact centre, and only on the proviso that there is a contact centre appropriately located, available and affordable. (The latter issue is becoming increasingly important as the number of free contact centres in this country continues to rapidly diminish.)

Problems with the Status Quo
The authors believe there are three main problems within the system that, if rectified, could help curb delay, namely: (1) the way in which fact finding hearings are listed; (2) the drafting of the schedule of allegations (a ‘Scott Schedule’) and (3) the obtainment of independent evidence.

(1) Listing
It is incumbent on practitioners to raise allegations of domestic violence with the judge at the earliest opportunity so as to give the parent against whom the allegations are raised sufficient time to consider their position in the proceedings and to ensure proper case management.

The majority of domestic violence allegations are raised at the first inter partes directions hearing. However, the way in which judges deal with allegations of domestic violence in terms of case management varies and is a matter of judicial preference. Some judges will ask for a Scott Schedule to be filed and a further directions hearing to be listed for the purpose of determining whether or not a fact finding hearing should take place. Other judges will simply list a fact finding hearing on the basis of being orally informed as to the general nature of the allegations likely to be raised.

Both approaches have pitfalls. The former approach means that even in cases where it seems that a fact finding hearing is going to be unavoidable, that hearing is delayed as a result of having to first proceed with a further directions hearing. That further directions hearing itself can take several months to be listed.

The latter approach means that although a fact finding hearing can be listed in a more expedient fashion, when the parties attend court for the hearing the trial judge may determine that there is little purpose in having a fact finding hearing and thus vacate the hearing. This will happen when the court takes the view that even if all the findings were made they would not affect the way in which the court will ultimately determine issues of residence / contact. 

(2) Scott Schedules
Coupled with the issue of listing, is the issue of the Scott Schedule. Scott Schedules are a tool of case management. The schedules list the allegations made by one party and the other party’s response to those allegations, the responses citing the relevant evidence in the court bundle upon which the party seeks to rely.

Courts often have to grapple to reduce the extent of Scott Schedules listing the allegations. It is understandable that practitioners find it difficult to limit the allegations they plead; clients will often make clear that every allegation is important and must be included. However, the result is that too many Scott Schedules are unfocused. Recurring problems include: allegations pleaded in respect of issues relating to welfare, not domestic violence; allegations pleaded that are not dated or event specific; and voluminous numbers of allegations pleaded with which a court will be unable to deal within the time allocated for the fact finding hearing. By way of illustration, the authors have come across Scott Schedules detailing one hundred allegations for a three day fact finding hearing – an impossible feat, and others alleging missed contact sessions – an issue not appropriate for fact finding.

These difficulties lead to Scott Schedules that have to be marshalled and cut down. This is far more of a problem if the court has listed a fact finding hearing prior to seeing a Scott Schedule as this case management then has to be undertaken on the first day of the hearing. This in turn decreases the time available for the substantive fact finding hearing and can occasionally lead to the fact finding having to be adjourned. Further, in some cases the allegations are narrowed down to such an extent that a shorter hearing could have been originally directed, which in turn may have helped secure an earlier listing of that hearing and thus limit delay (it normally being easier to acquire an earlier listing for a shorter hearing).

(3) Independent evidence
Independent evidence is sometimes not available in domestic violence cases. The authors have experience of many a case where the party who alleges domestic violence cannot produce any independent, corroborative evidence as they have been too afraid to call the police, or others for assistance. However, in some cases independent evidence is key and it is therefore very important for due process and fair trial that all the relevant evidence is put before the court.

Not all practitioners seek disclosure orders against the relevant authorities at the start of the proceedings, and sometimes not until after the fact finding hearing has been listed. As a result, late requests for disclosure can often derail the entire timetable and lead to the fact finding hearing having to be adjourned to a later date. Unfortunately, this derailment also happens when requests are made at an early stage – the culpability in these situations lying with the relevant authority/ies who have not complied with the request prior to the fact finding hearing.

A Possible Way Forward
The authors realise that a great deal of thought has gone into the way that fact finding hearings are managed and therefore with considerable deference propose a possible improvement.

We suggest the following procedure could be put in place to help streamline the system and thus curtail delay in cases where allegations of domestic violence are raised:

1) A Scott Schedule should always be filed and served prior to the first, inter partes hearing in any residence / contact dispute. The court always has a duty to consider issues of domestic violence, at the earliest possible opportunity, so as to ensure that any order for residence / contact adequately safeguards the child/ren concerned. This procedure formalises that duty. In some cases, the Scott Schedule will merely serve as a background to the case to ensure that historic issues are not raised at a later stage in an attempt to thwart the progress of the proceedings.

2) At the first hearing, the court should:

(a) Determine whether or not a fact finding hearing is appropriate and list accordingly.

(b) If there is the possibility of any allegations being corroborated by independent evidence, disclosure orders must be obtained at the first hearing, with the court directing the disclosure from the relevant authority at least two weeks prior to the fact finding hearing. With regard to disclosure from the Police, this must be obtained via the Police / Family Disclosure Protocol and thus the Protocol form should be amended to provide that the disclosure must be obtained at least two weeks prior to the fact finding hearing.

(c) Scott Schedules: the court should limit the fact finding hearing to the determination of five allegations raised by each party. There should be a rebuttable presumption that five allegations are sufficient; it being for the parent who raises the allegations to rebut this presumption. This process would allow for the majority of fact finding hearings to be focused and tailored to the most serious issues in the case. Further, it would help limit the time estimate of cases and thus give more of an opportunity for the parties to secure an earlier listing.

This rule reinforces and structures the current, ad hoc practice of narrowing down Scott Schedules. From the authors’ experience, even in cases where a court commences its determination with a Scott Schedule detailing far more than five allegations, the court nonetheless often focuses on a handful of allegations. The authors feel the presumption will be rebutted in those cases where it is important to evidence a systematic and lengthy catalogue of domestic violence. 

(d) Directions should then be given for short statements to be filed and served that deal exclusively with the allegations raised. All issues of welfare are to be reserved for further statements that can be adduced for the final hearing. This narrowing of the evidence would help focus the parties’ minds on the task at hand and prevent the hearing straying into issues of welfare.

Fact finding hearings are commonplace in private law, children disputes where allegations of domestic violence are raised. Striking the right balance between fact finding and preventing delay is crucial to the fair and just resolution of these disputes. The authors feel the suggested procedure would assist in obtaining the optimum balance.

Anne-Marie Hutchinson OBE, Partner at Dawson Cornwell
Jacqueline Renton, Barrister, 4 Paper Buildings